Contracts for Original Works
Published on Internet
by Nicolas Valluet
This is the first of a series of occasional articles from attorneys from
various countries around the world on problems of international law as they
apply to animation. Our opening article in this series deals, appropriately
enough, with the Internet and is written from a French perspective.
The putting online of an original work demands that the owner of rights
to the "work" (author or assignee) specifically authorizes the
online-service (publisher) to exploit it on the Internet. The existence
of prior contracts forseeing the ceding of rights for certain venues without
alluding to online use, is no longer sufficient grounds for the publisher
to assume that he has rights to broadcast the work on the Net. The law now
demands a signature on a specific Internet contract--which also has the
merit of clarifying the rights of both parties.
In the eyes of the French law, this contract should include ceding the right
to play the work on the Net, and usually ceding the rights to reproduction.
The right to play consists of communicating the work to the public by either
a direct or indirect process, such as television or the Internet. The rights
to reproduction, on the other hand, gives authorization to fix the work
materially, including its reproduction by printing on paper or its reproduction
by a digital process in the computer's memory.
The author may refuse to cede his rights to reproduction, and demand that
the publisher forbid the visitors to his site from downloading any information
figuring in the work. However, since this prohibition is difficult to monitor
in practice, I believe the author should negotiate for ceding the rights
to reproduction.
Further issues involve the extent of the rights ceded by the contract, which
include the mode of payment, the territory covered, the length of time for
which the contract will be valid, and respecting of the author's moral rights.
Concerning the territory, it is illusory to limit the ceding to such and
such territory considering the international nature of the Internet, and
the fact that the users are hard to locate. So the attention of the parties
should focus on the length of the ceding and on how the author will be remunerated.
The parties must decide between a proportional remuneration or royalty (if
it were possible to calculate that) and an outright, upfront payment--or
some combination of the two. Considering the difficulties in predicting
and calculating remuneration proportional to the online access to a work,
it is more reasonable to plan a system of outright payment to the author.
But the mode of compensation also influences the duration of the rights
ceded. In effect, the combination of a long-running contract with an upfront
payment seems dangerous for the author, since he loses financial control
of his work for a long time. Though it is theoretically possible to cede
the rights for the whole duration of the copyright, commonly in the digital
domain one cedes rights for a limited time, accompanied by a clause
that automatically renews the contract, unless one party informs the other
to the contrary. So, while there exists a freedom of choice for both parties
in respect to the duration of the ceding of rights to exploit the work,
a combination of upfront payment with a limited duration of the contract
is favored by French jurisprudence and tenet.
Aside from proprietary rights, we must also consider the moral rights of
the author, which is quite specific in continental European law (but doesn't
exist in the United States). French law poses the principle of perpetual
moral rights of the author, which acts as a right beyond copyright and confers
on the author rights in respect to his name, his quality and his work--and
over the publication of those. These moral rights are specifically attached
to the person of the author, being perpetual and inalienable, and they cannot
be annulled or made void. So the moral right remains attached to the author
and his heirs, who may not cede this right, but who may use it to continue
the exploitation of the work after the expiration of the formal copyright.
Similarly the author or his heirs may use this moral right to oppose a usage
made of the work even after rights for exploitation have been contractually
ceded.
In the final analysis, French law protects the interests of the author,
and it is absolutely necessary that the Internet publisher obtain these
rights with a contract that considers the duration of ceded rights and the
mode of remuneration for them, and which is conscious of the moral rights
of the author.
Nicolas Valluet is a lawyer at the Court of Paris, associated with the
firm Valluet-Achache et associées, as well as president of l'Association
des Avocats du Droit d'Auteur (Association of Lawyers for the Rights of
Authors).
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